It is World Menopause Day this week and as a timely reminder of the importance of taking into account menopausal symptoms and potentially making reasonable adjustments when managing performance issues, we consider the implications of a recent employment tribunal decision.

Lynskey v Direct Line Insurance Services Ltd, ET 1802204/2022 and 1802386/2022

Facts of the case

In this case, the claimant, Mrs Lynskey, worked for Direct Line Insurance Services Ltd as a tele-sales consultant from 2016 until her resignation in May 2022. She was a competent employee who began suffering menopausal symptoms in 2019. As these symptoms worsened, her performance at work began to be affected.

Following a concerning call with a customer in 2020, Mrs Lynskey was taken away from directly selling to customers and was moved to a more indirect role where she initially performed well. Mrs Lynskey later received complaints about being rude to customers. Her 2020 annual review rated her as needing improvement, resulting in no pay rise. She underwent training but her employer continued to have concerns about her performance, despite some improvements, and it commenced disciplinary proceedings.

Following a disciplinary meeting in April 2021, Mrs Lynskey received a written warning. Her manager acknowledged her menopausal symptoms (which she had asserted were the cause of the issues) but did not accept them as an excuse for her performance because she had taken on the new role despite her symptoms. Afterwards, her health deteriorated, leading to a referral to occupational health.

Direct Line withdrew her sick pay, citing sustainability concerns around her absence. On 3 May 2022, Mrs Lynskey resigned, referring to the treatment she had received over the previous couple of years, Direct Line's failure to make reasonable adjustments and alleging disability, age and sex discrimination.

Employment tribunal decision

Direct Line had conceded that Mrs Lynskey has a disability due to her menopause symptoms. However, Direct Line refuted that they had treated Mrs Lynskey less favourably because of something arising from her disability, arguing that they had made reasonable adjustments for her. The tribunal disagreed, making a finding of discrimination arising from disability and failure to make reasonable adjustments.

In making its decision, the tribunal noted that that the "requires improvement" rating was unfavourable by not taking into account the fact that she was performing as well as she could in light of her menopausal symptoms. The tribunal also found unfavourable treatment on account of the decision to issue Mrs Lynskey with a warning and withdraw her sick pay on the basis that she wasn't doing enough to help herself, which failed to take into account the underlying medical issues. A further finding of failure to make reasonable adjustments was also made on the basis that the adjustments made had not gone far enough, with the employment tribunal criticising the decision to continue with a disciplinary process in these circumstances.

Mrs Lynskey failed in her claims of sex and age discrimination and constructive unfair dismissal.

In respect of her successful claims of discrimination arising from disability and failure to make reasonable adjustments she was awarded compensation totalling £64,645, including £23,000 for injury to feelings and a further £2,500 in aggravated damages for Direct Line's late acknowledgement of her disability.

The Birketts view

This decision follows a number of recent cases where women struggling with menopausal symptoms and who have subsequently been treated unfavourably in the workplace, have been able to seek a remedy under the Equality Act 2010. It highlights the importance of considering adjustments to performance management processes when the employee has an underlying disability and confirms that menopausal symptoms can satisfy the definition of a disability for employment law purposes.

Whilst proposals to make the menopause a protected characteristic in its own right were rejected earlier this year, the protected characteristics of sex, age and disability have been used as a basis for successful claims by employees undergoing the menopause.

This case clearly demonstrates the importance of employers understanding and educating staff on the relevance of the menopause in the workplace and making sure policies and processes provide support to employees who are struggling or debilitated by menopausal systems. Whilst ultimately employers can still manage performance issues of an employee with a disability who is failing to meet expected standards, particular care needs to be taken and early legal advice is recommended.

For help implementing policies and guidance on the menopause in the workplace or providing training to staff and line managers to avoid issues like those that arose in this case, do get in touch with the Birketts Team.

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